Rectory Realty Associates v. Town of Southampton

151 A.D.2d 737, 543 N.Y.S.2d 128, 1989 N.Y. App. Div. LEXIS 9178

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 26, 1989
• Status: Published

Opinion

In an action, inter alia, for a judgment declaring that the "plaintiffs have a vested right to use [certain real property] owned by them in accordance with the minimum lot area requirement of the Zoning Code [of the Town of Southampton] as in effect prior to March 27, 1984”, the proposed intervenors-defendants appeal from (1) an order of the Supreme Court, Suffolk County (Hand, J.), dated October 13, 1988, which, inter alia, denied their motion for leave to intervene, and (2) an order of the same court, also dated October 13, 1988, which granted the plaintiffs’ cross motion for summary judgment validating the provisions of a stipulation of settlement.

Ordered that the order denying the motion to intervene is affirmed; and it is further,

Ordered that the appeal from the order granting summary judgment is dismissed as academic; and it is further,

Ordered that the respondents appearing separately and filing separate briefs are awarded one bill of costs.

The plaintiff Rectory Realty Associates (hereinafter Rectory) is the developer of Parsonage Pond, a parcel of real property located in the Town of Southampton which it acquired in February 1982. In March 1984, after Rectory made extensive physical improvements to the 31 undeveloped lots, the defendant Town of Southampton amended its Zoning Code, doubling the minimum lot area requirement for residential building lots. The plaintiff thereafter commenced an action for a declaratory judgment, challenging the constitutionality of this amendment as applied to the Parsonage Pond lots.

After extensive negotiations, the parties entered into a proposed stipulation of settlement in April 1987. Just prior to the parties’ submission of the proposed settlement for judicial approval (see, Town Law § 68 [1]), a motion to intervene was made by Stephen Anfang and William Brian Little (hereinafter the proposed intervenors), adjacent landowners, in an attempt to challenge the validity of the settlement. Special Term denied leave to intervene as well as their application to invalidate the settlement. We find no reason to disturb this determination. *

The proposed intervenors brought a motion pursuant to CPLR 1012 and 1013. These two provisions require that a "timely motion” be made. Despite the fact that the proposed intervenors became aware of the events which were transpiring in connection with this action by mid-1986, they did not attempt to intervene in the action until more than a year later. This cannot be considered timely. Moreover, we note that in the interim, based on the prospect of a reasonably prompt settlement, the plaintiff Rectory entered into negotiations with various parties, to sell several parcels of land in Parsonage Pond. We find that the delay caused by the motion to intervene would prejudice the rights of the plaintiffs in this regard (see, CPLR 1013; Matter of Buffalo Mall v Assessor of Town of Clarence, 101 AD2d 701).

In light of the fact that the motion to intervene was properly denied, the appeal from the order validating the settlement must be dismissed as academic (see, Matter of Fink v Salerno, 105 AD2d 489). In any event, contrary to the proposed intervenors’ contentions, we find that the settlement constitutes a legitimate compromise of conflicting claims (see, Matter of Andgar Assocs. v Board of Zoning Appeals, 30 AD2d 672). Bracken, J. P., Eiber, Harwood and Balletta, JJ., concur.